Is Your Prenuptial Agreement Invalid?

A prenuptial agreement, or a “prenup," is a written agreement (contract) between future spouses before marriage. In this legal document, future spouses agree on how to split finances (joint bank accounts, alimony, etc.) and marital property in the event of a divorce or death. This includes protecting a family business or securing your personal assets (individual bank accounts, property, etc.).

Prenuptial agreements can be a great tool for couples before marriage. You can find more examples of common reasons to get a prenup. There is also more information if you are considering whether or not a prenup is right for you.

However, prenups must be drafted correctly to be legally enforceable. In a divorce, a prenup’s enforceability determines whether it will influence the outcome. This article discusses why a prenup may be invalid.

Top 10 Reasons Why a Prenuptial Agreement Might Be Invalid

Although legal requirements for prenups vary by state, there are common circumstances that make a prenup invalid (unenforceable). Here are the top 10 reasons:

1. No written agreement
2. Not signed on time
3. Pressured, threatened, or forced to sign
4. Did not read the prenup
5. No time for consideration
6. Invalid provisions
7. False information
8. Incomplete information
9. No independent counsel
10. Unconscionability

1. No Written Agreement

Prenuptial agreements are legal contracts, and they must be in writing to be enforceable. This means that you cannot have an oral agreement. If a prenup is not in writing, the prenup will be invalid.

2. Not Signed on Time

A prenup is a premarital agreement. This means that a prenup is an agreement signed before marriage. Both future spouses must sign a prenup in a timely manner (before the wedding) in order for the agreement to be considered valid.

Note: states have different time requirements for when you can sign the prenup. For example, California requires a seven-day waiting period from when a future spouse receives the prenup until the time the spouse signs it.

This means that (in California) if you get the prenup two days before the wedding and you sign it the same day, the prenup may not be enforceable because you did not wait seven days.

3. Pressured, Threatened, or Forced to Sign

A premarital agreement may not be valid if one of the future spouses was pressured, threatened, or forced by the other future spouse to sign the agreement. This includes undue influence from a future spouse's lawyer, family, or friend who pressures someone to sign. It may also be invalid if the partner lacked the mental capacity to understand the terms of the agreement.

This type of behavior does not have to be violent. If a partner feels they have no choice but to sign the agreement, that could be enough to make the premarital agreement invalid. For example, suppose one party threatens to cancel the wedding or take away financial rights or real estate if the other partner does not sign.

A valid will requires both parties to sign by their own free will.

4. Did Not Read the Prenup

If your future spouse hands you a bunch of papers (which include a premarital agreement) and asks you to sign them quickly, the prenup may not be enforceable if you sign it without reading the entire agreement.

5. No Time for Consideration

A future spouse entering into a premarital agreement must be given enough time to review it and think it over before signing it.

If a partner hands the contract and a pen to their partner just before the wedding ceremony, the agreement is probably invalid.

6. Invalid Provisions

Although a premarital agreement can determine finances, it cannot list child support, child custody, or visitation rights that either spouse would have if the marriage ends in divorce.

Any other provisions of the agreement that violate the law, would also be invalid. It is possible that the court could strike only the illegal clauses but enforce the remainder of the agreement.

7. False Information

A premarital agreement is valid only if it is entered into after full disclosure of income, assets, and liabilities by both parties.

If one partner provides the other with information that is not true or does not fully disclose the information, the agreement is invalid.

8. Incomplete Information

Failing to provide important information is the same as providing false information. This will make a premarital agreement unenforceable. Creating a valid prenup requires carefully disclosing all relevant financial matters.

9. No Independent Counsel

Because both partners' separate interests are at stake, both parties to a premarital contract should (and in some states, must) be represented by their own attorneys, or the agreement will not be enforced.

10. Unconscionability

Unconscionable is a legal term that means extremely unfair or unreasonable to one of the parties or unacceptably offensive to public policy. If something in the prenup is extremely unfair, even if you sign it, the prenup will be invalid.

For example, the clause may be invalid if you agree to give up your right to:

• Inherit from your partner
• Spousal support
• All property ownership

In law, one of the benefits of marriage is that you are entitled to all the above, even if your partner did not mention you in their will. This is also true if your partner makes much more than you but signs an agreement to leave you with nothing.

If you agree that your spouse gets all the property and you get all the marital debt, a court may find it to be an unconscionable term. The prenup may be invalid because this division of assets would be extremely unfair.

If the agreement is so grossly unfair that one party would face severe financial hardship while the other will not, the court is not likely to enforce it. Essentially, "unconscionable" contracts are generally found invalid. Premarital agreements are no exception.

Can a Prenup Be Overturned?

Yes, it’s possible to overturn a prenup if it meets one or more invalidating factors. It’s also possible if the circumstances have dramatically changed since you signed the prenup.

However, valid prenups are binding contracts. They intend to give both spouses assurance for property division, spousal support, or other conditions in the future. That’s why judges consider these decisions carefully. Courts avoid overriding marital agreements without a compelling reason.

Challenging a prenup most often happens during divorce. A spouse who believes their prenup would cause an unfair outcome might ask the court to overturn it. The spouse must prove its invalidity or the extenuating circumstances. If the court overturns the prenup, its terms will not determine the divorce outcome.

You may also voluntarily modify or revoke a valid prenup at any time. Both parties must agree to the change. Couples sometimes change their mind about prenup terms as their lives take unexpected directions. Get legal advice before revoking a prenup because it may change the protections you have during and after the marriage.

Find Legal Representation for Your Premarital Agreement

A premarital agreement can offer peace of mind. It can help you feel secure that your assets will be protected in the event that your marriage ends in a death or divorce.

However, it may be tricky to write a prenup without legal counsel. If you write a prenup incorrectly, it may not be valid. This means you cannot use it, and your spouse may automatically be entitled to half of all your finances and property.

To make sure you have a valid prenup, you will need to seek legal advice from an attorney. Consult a local family law attorney to make sure your premarital agreement is valid and in compliance with your state laws.